Deyda Hydara Jr. and Others v. The Gambia

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Deyda Hydara, one of Gambia’s most distinguished journalists, was gunned down in a Banjul suburb on December 16, 2004. A leading critic of the regime, Hydara had led the efforts of journalist groups to resist changes to press laws that would have severely muzzled Gambian journalism. In 2014, the ECOWAS Community Court of Justice found that the Gambian authorities had failed to conduct a proper investigation into his murder, violating the right to life. The National Intelligence Agency (NIA) was not impartial, as they had themselves been accused of complicity in the assassination, finding that “one cannot investigate a crime when it is itself the accused”. Given multiple previous attacks against journalists, the Court found that there was a climate of impunity in the Gambia, “stifling freedom of expression”.

Facts

The applicants in the current case are Deyda Hydara, Jr., Ismaila Hydara, and the Africa Regional Office of the International Federation of Journalists (IFJ-Africa). The first two applicants are children of the late Deyda Hydara, former publisher and editor of the Banjul-based newspaper The Point, and former president of the Gambian Press Union. IFJ is the world’s largest association of journalists. IFJ-Africa, the organization’s chapter for the African continent, is a separate legal entity based and registered in Dakar, Senegal.

Throughout his professional life, Deyda Hydara had devoted himself to protecting media freedoms in the face of Gambian government efforts to control the press. In his last Point column, which appeared on the day of his death, Deyda Hydara vowed to continue to challenge such restrictions through all constitutional means. In the weeks preceding the shooting, Mr. Hydara had received multiple death threats by telephone.

Shooting of Deyda Hydara

Deyda Hydara was murdered in a drive-by shooting on 16 December 2004, as he drove home from The Point premises. Two or more assailants, driving in an old taxi, shot Mr. Hydara multiple times in his head and stomach. According to eye witnesses, a Mitsubishi pick-up truck with tinted windows was parked in the vicinity of the newspaper’s premises shortly before the shooting. Similar vehicles, which are known to be driven by Gambian security forces, appeared to have placed the newspaper premises under surveillance earlier that day. His two colleagues who were riding with him were also shot and severely injured.

Flawed and one-sided investigation

The police investigation pursued almost exclusively suspects linked to Mr. Hydara’s personal life, rather than his professional work.

The initial police investigation was poorly undertaken, such that in February 2005, President Jammeh ordered the official investigation be handed over to the Gambian National Intelligence Agency (NIA). According to domestic and international rights groups, the NIA is responsible for the arbitrary detention of journalists and the persecution of critics of the Jammeh regime. The ECOWAS Court has previously found the NIA to be involved in torture and disappearances.

The NIA investigation into the Hydara shooting was poorly conducted, and seemed intended more to discredit the memory of Deyda Hydara than to find out who killed him. The investigators did not indicate whether they conducted any ballistic tests and what evidence, if any, they obtained from them. All investigative actions were completed by 26 February 2005, only 18 days after it was started.

Since the interim report was published in June 2005, no investigative actions have been undertaken, despite numerous leads presented by journalists and NGOs. The interim report reviewed a number of dubious scenarios suggesting a privately-motivated shooting, but failed to pursue the strong indications of a link to Mr. Hydara’s journalistic activities. Eight of the report’s 22 pages attack Mr. Hydara’s character, and chastise him for having being critical of the Gambian government. It is clear that the NIA failed to undertake any investigations into the possibility that Hydara may have been killed by state agents.

Calls for justice suppressed

Since the death of Mr. Hydara, Gambian and international civil society has repeatedly called for the effective investigation of the killing. A report of the U.N. Working Group on the Universal Periodic Review on the Gambia also included a call for an independent investigation. Amnesty International expressed concern about his killing and made a general recommendation for investigations of all human right violations.

In response, the Jammeh regime has done everything in its power to suppress calls for justice in the Hydara case. The government blocked several attempts to commemorate the anniversaries of Mr. Hydara’s killing. In recent years, seven journalists were detained because they spoke out against the government’s failure to investigate Mr. Hydara’s murder. Six more journalists were convicted and sentenced to two years imprisonment for similar motives, though later were pardoned by the President.

Gambian press under siege

The killing of Mr. Hydara was part of a continuing pattern of unpunished threats and violence against media houses, media professionals and other independent figures critical of the government. In addition, numerous reports have warned of severe restrictions on the freedom of the press in The Gambia, which have made the country one of the worst places in Africa for practicing independent journalism.

In two previous judgments against The Gambia, the ECOWAS Court has found that Gambian government agents were responsible for the disappearance of Ebrima Manneh, a journalist with the Daily Observer who is still unaccounted for, and the torture of Musa Saidykhan, a former chief editor of The Independent, a newspaper that has been shut down by the government without a court order.

The Open Society Justice Initiative represents the Hydara family and IFJ-Africa in the proceedings before the ECOWAS Court, together with the Abuja-based law firm Aluko and Oyebode.

Arguments

Failure to investigate. The State is required to conduct a thorough, rigorous, and independent investigation into the violent death of Mr. Hydara that is capable of ascertaining the circumstances of the shooting, as well as of identifying and punishing the intellectual and material perpetrators of the act. It failed to do so, conducting a sham investigation that was meant to discredit Mr. Hydara.

Climate of impunity contributed to killing. The State contributed to Mr. Hydara’s death by tolerating and causing a climate of impunity in the country as a result of its systematic failure to condemn, effectively investigate, and secure accountability for a series of grave attacks against media professionals and political dissidents in the years preceding Mr. Hydara’s murder.

Media freedom violated. There is no graver interference with freedom of the press than for a journalist to be killed for what he writes. The ongoing failure to conduct a proper investigation has a chilling effect on the important work of journalists in The Gambia and in West Africa in general.

No redress. The State has not provided Mr. Hydara’s family with any redress or compensation for his death and the violation of his freedom of expression; and the failure to effectively investigate his death and identify the perpetrators has prevented them from seeking compensation themselves.

Timeline

December 16, 2004. Deyda Hydara is killed in a drive-by shooting in a Banjul suburb. He had received death threats in the preceding weeks.February 20, 2005. President Jammeh hands over the investigation to the NIA, an agency with a notorious record of human rights abuses and political repression.June 2005. The NIA leaks a whitewash report of its “findings” from the Hydara investigation.January 2007. In a press interview, Gambian President Jammeh blames “Gambia’s enemies” for murdering Mr. Hydara, without further elaboration.June 5, 2008. The ECOWAS Court finds Gambian government agents responsible for the disappearance of journalist Ebrima Manneh.July 2009. The Gambian government detains and prosecutes seven journalists for speaking out against the failure to investigate Mr. Hydara’s murder and the suppression of freedom of expression. The government pressures The Point to remove an online banner asking “Who Killed Deyda Hydara?”December 16, 2010. On the sixth anniversary of the Hydara killing, the ECOWAS Court finds against The Gambia in a case involving the torture of Musa Saidykhan, former editor of The Independent.November 23, 2011. The Open Society Justice Initiative submits a petition to the ECOWAS Court on behalf of the Hydara family and IFJ-Africa.December 28, 2011. The government files a preliminary objection claiming that the action is out of time.December 13, 2012. The ECOWAS Court holds a hearing on the Government’s preliminary objections and declares the case admissible.February 14, 2014. Hearing held in Lomé, Togo. Deyda Hydara Jr. heard as a witness.May 22, 2014. Hearing held in Abuja, Nigeria. Lamine K. Saine, formerly of the National Intelligence Agency, gives evidence. June 10, 2014. Judgment delivered by the Court.

Findings

On June 10, 2014, the ECOWAS Court delivered judgment in the case, finding that the government had failed to conduct a proper investigation and had allowed there to be a culture of impunity in the Gambia.

Failure to Investigate

Deyda Hydara’s death violated the right to life, which “imposes an obligation on States to investigate all acts of crime and bring perpetrators to book”. While the initial police investigation had been taken over by the NIA, who had issued a short interim report, “no other investigations have been carried out”. The Court was particularly critical of the failure to carry out ballistics tests on the bullets recovered from the victims, and from firearms belonging to suspects, which the Court considered to be “baffling”, concluding that “without a ballistic examination one could not conclude that a proper investigation had been carried out”, and that “every gun recovered from every suspect” should have been subjected to such tests.

There were accusations of state collusion in the killing. One of the witnesses had told the police that some personnel from the NIA had followed her to Senegal in order to eliminate her. For the Court, this cast into doubt the impartiality of the investigation:

“Justice would not seem to have been done in this case as the very body which was accused of complicity was the very one charged with the responsibility to investigate. The NIA was not an impartial body in the circumstances. The duty to conduct investigations imposed on a State involves the duty to be impartial, fair and just. One cannot be a judge in his own cause, so too one cannot investigate a crime when it is itself the accused”.

It was clear from the evidence that little had been done to find the truth. The Court concluded that “since February 2005 no attempt has been made to conduct any meaningful investigations into the murder of the deceased”.

Climate of Impunity

The ECOWAS treaty commits member states to “ensure respect for the rights of journalists”. The Court interpreted this to mean that “a State will be in breach of international law and treaty obligations if it fails to protect media practitioners including those critical of the regime. For freedom of expression also includes the freedom to criticize the government and it functionaries, subject to limitations imposed by the domestic laws”.

The Court found that there were numerous examples of attacks against journalists in the Gambia, for which no adequate explanation had been provided by the government, including two previous judgments of the ECOWAS Court involving the torture and the disappearance of two journalists.

. The Court concluded that where attacks by state operatives against journalists are not investigated, let alone prosecuted, the State will be breaching its obligation to assure a safe and conducive atmosphere for the practice of journalism: “such impunity has the effect of denying journalists the right to function, thus stifling freedom of expression”.

Damages

The Court awarded damages of US $50,000 for the failure to properly investigate the assassination, as requested by the claimants. This figure matches sums awarded by other regional human rights tribunals for similar failures to investigate.